The Texas Education Agency (TEA) adopts amendments to §§89.1011, 89.1040, 89.1049, 89.1055, 89.1070, and 89.1075; the repeal of §89.1047; and new §89.1047, concerning clarification of special education provisions in federal regulations and state law. The amendments to §§89.1011, 89.1040, 89.1049, 89.1055, 89.1070, and 89.1075 and the repeal of §89.1047 are adopted without changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5826) and will not be republished. New §89.1047 is adopted with changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5826). The adopted revisions modify procedures related to content and review of students' individualized education programs (IEPs), provisions related to transition services, notice requirements for students with disabilities and their parents, and procedures for surrogate and foster parents as well as make technical edits.

REASONED JUSTIFICATION. Amendments to the Individuals with Disabilities Education Act (IDEA) and to the Every Student Succeeds Act (ESSA) resulted in the removal of references to scientific, researched-based intervention and replaced those references with evidence-based intervention. The adopted amendments to §89.1011, Full Individual and Initial Evaluation, and §89.1040, Eligibility Criteria, make technical changes to align these two sections with the changes in IDEA and ESSA.

HB 1556, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §29.015 and §29.0151, to change state requirements related to foster parents of students with disabilities and the appointing of surrogate parents to students with disabilities who are in the foster care system. The repeal of §89.1047, Procedures for Surrogate and Foster Parents, and new §89.1047, Procedures for Special Education Decision-Making for Students in Foster Care, address these new requirements. In response to public comments, TEA made two changes to §89.1047 at adoption. The first change, in new subsection (c)(1)(I), requires surrogate parents to receive training on their duties and responsibilities as required under TEC, §29.0151(d). The second change, in subsection (d), iterates those individuals who may not be appointed as surrogate parents by school districts.

SB 748 and HB 1886, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §29.017, to change state requirements related to notice regarding transfer of rights to adult students with disabilities and content of the student's IEP. The adopted amendments to §89.1049, Parental Rights Regarding Adult Students, and §89.1055, Content of the Individualized Education Program, address these new requirements. In addition, the adopted amendment to §89.1055 addresses updated state requirements for transition services resulting from changes to the TEC, §29.011, by SB 748 and HB 1886.

SB 463, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §28.0158 and §39.025, to extend the time frame under which a student who has failed to achieve end-of-course assessment graduation requirements for no more than two courses may graduate high school. The adopted amendment to §89.1070, Graduation Requirements, addresses this change in time frame.

SB 1259, 84th Texas Legislature, Regular Session, 2015, amended the TEC, §29.001, to allow teachers who instruct a student with a disability in a regular classroom setting to provide input into the development of the student's IEP. To ensure consistency between statute and administrative rule, the adopted amendment to §89.1075, General Program Requirements and Local District Procedures, incorporates this requirement into rule.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began on October 20, 2017, ended on November 20, 2017, and included public hearings that were held on October 30 and 31, 2017. Following is a summary of public comments received, including those received at the public hearing, and corresponding agency responses.

Comment: Disability Rights Texas (DRTx) recommended that proposed 19 TAC §89.1047(c)(1)(F), which requires that foster and surrogate parents receive training on implementation of a student's individualized education program (IEP), be amended to also mandate training related to relevant trauma-informed practices, positive behavior interventions and supports (PBIS), and other evidence-based strategies that improve academic outcomes for students and that reduce the need for use of disciplinary practices.

Agency Response: The agency disagrees. The intent of the relevant portion of the training is to inform foster and surrogate parents of the requirements associated with IEP implementation, not content. To the commenter's point about the need for other areas of training, the agency notes that the current training requirements mandate that foster and surrogate parents be informed of where to obtain additional assistance in understanding state and federal laws, rules, and regulations relating to students with disabilities. Likewise, 19 TAC §89.1047(c)(4) provides that school districts may provide optional ongoing or supplemental training. The agency, therefore, does not believe that requiring training on possible IEP content in the rule, as suggested, is necessary.

Comment: DRTx recommended that proposed 19 TAC §89.1047(c)(1)(G), which requires that foster and surrogate parents receive training on the procedural rights and safeguards under the Individuals with Disabilities Education Act (IDEA), be amended to also require training on Texas Education Code (TEC), Chapter 29, related to special education, and Chapter 37, related to discipline, law, and order.

Agency Response: The agency disagrees. The current training requirements include information related to discipline; evaluations; eligibility; the admission, review and dismissal process; and the development of the IEP, among other topics. These general topics are broad enough to give foster and surrogate parents the information necessary to meet their students' needs. To the commenter's point about the need for other areas of training, the agency notes that the current training requirements mandate that foster and surrogate parents be informed of where to obtain additional assistance in understanding state and federal laws, rules, and regulations relating to students with disabilities. Likewise, 19 TAC §89.1047(c)(4) provides that school districts may provide optional ongoing or supplemental training. The agency, therefore, does not believe that additional training, as suggested, is necessary.

Comment: DRTx recommended the inclusion of proposed 19 TAC §89.1047(c)(1)(I), which would incorporate the duties of a surrogate parent listed in TEC, §29.0151(d), as part of the required training.

Agency Response. The agency agrees and has made the recommended change at adoption to ensure that the training includes the required duties of a surrogate parent.

Comment: The Texas Council of Administrators of Special Education (TCASE) recommended that proposed 19 TAC §89.1047(d) iterate the limitations of who may serve as a surrogate parent. TCASE also commented that rule should typically not repeat statute.

Agency Response: The agency agrees with the recommendation to include as part of the rule the limitations on whom a school district may appoint as a child's surrogate parent and has made the recommended change at adoption. As to repeating statute in an administrative rule, the agency believes that, in this instance, having requirements in one place is helpful for stakeholders.

Comment: TCASE recommended that proposed 19 TAC §89.1070 include a reference to TEC, §28.02541, relating to the awarding of diplomas to certain students who entered grade nine prior to the 2011-2012 school year.

Agency Response: The agency disagrees with the recommendation to make the suggested revision to 19 TAC §89.1070 at this time. TEC, §28.02541, requires the agency to conduct rulemaking to develop procedures related to the new graduation pathway. Once those rules are adopted, the agency will review 19 TAC §89.1070 to determine what changes, if any, are needed.

Comment: The Texas Classroom Teachers Association (TCTA) expressed support for the proposed revision to 19 TAC §89.1075(d)(2), related to requiring school districts to have policies in place that allow teachers who instruct a student with a disability in a regular classroom setting to provide input into the development of the student's IEP.

Agency Response: The agency agrees.

STATUTORY AUTHORITY. The amendments and new section are adopted under the Texas Education Code (TEC), §29.001, which requires the Texas Education Agency to develop and modify, as necessary, a statewide plan that includes rules for the administration and funding of the delivery of services to children with disabilities in the state of Texas so that a free appropriate public education is available to all of those children between the ages of 3 and 21; TEC, §29.011, as amended by Senate Bill (SB) 748 and House Bill (HB) 1886, 85th Texas Legislature, Regular Session, 2017, which amends the transition requirements for students that must be in place for a student not later than when the student reaches 14 years of age; TEC, §29.015, as amended by HB 1556, 85th Texas Legislature, Regular Session, 2017, which allows foster parents to serve as the parent of a student with a disability under certain circumstances and specifies the timelines for completing the required training program; TEC, §29.0151, as added by HB 1556, 85th Texas Legislature, Regular Session, 2017, which establishes the requirements for surrogate parents of students with disabilities who are in the foster care system and specifies the timelines for completing the required training program; TEC, §29.017, as amended by SB 748 and HB 1886, 85th Texas Legislature, Regular Session, 2017, which specifies the content of the notice that must be provided to students with disabilities and their parents not later than one year before a student's 18th birthday; requires students' individualized education programs (IEPs) to include a statement that the notice has been provided; and specifies the content of the notice that must be provided to students with disabilities and their parents when a student with a disability turns 18; and TEC, §28.0258 and §39.025, as amended by SB 463, 85th Texas Legislature, Regular Session, 2017, which allow a student who has failed to achieve the end-of-course assessment graduation requirements for no more than two courses to receive a Texas high school diploma under the TEC, §28.0258, with an expiration date of September 1, 2019.

CROSS REFERENCE TO STATUTE. The amendments and new section implement the Texas Education Code, §§29.001; 29.011 and 29.017, as amended by Senate Bill (SB) 748 and House Bill (HB) 1886, 85th Texas Legislature, Regular Session, 2017; 28.0258 and 39.025, as amended by SB 463, 85th Texas Legislature, Regular Session, 2017; 29.015, as amended by HB 1556, 85th Texas Legislature, Regular Session, 2017; and 29.0151, as added by HB 1556, 85th Texas Legislature, Regular Session, 2017.